Warner v. Paramount Constr.
| Decision Date | 13 August 2021 |
| Docket Number | 2401-2019 |
| Parties | Nancy Werner, et al. v. Paramount Construction, Inc. |
| Court | Court of Special Appeals of Maryland |
Circuit Court for Montgomery County Case No. 447344V
OPINION [*]
This case involves a dispute about the location of a nineteenth century burial plot, which was excluded from a series of conveyances in the 1920s.
The descendants of the persons buried in the plot contend that the plot is located on what is now a suburban lot in Chevy Chase. In response, the record owner of the lot filed suit to quiet title.
The Circuit Court for Montgomery County determined that the descendants did not have title to any part of the lot and that there is no evidence of a burial ground on the lot. The descendants appealed. We affirm.
In 1839, Isaac Shoemaker acquired a 140-acre farm that straddled the border between the District of Columbia and Montgomery County, Maryland. The farm remained under the ownership of the Shoemaker family for several generations.
In 1924, Albert Shoemaker, Isaac's grandson, sold 60 acres of the land, located in what is now the Brookdale community of Friendship Heights in Chevy Chase, to Francis Bennett Poe. The 1924 deed excluded "a small burial plot located on the Perry Boundary line near the River Road; consisting [of] 1/7 of an acre." The deed gave no additional information about the location of the burial plot. For example, the deed did not contain a drawing that shows where, on the 60-acre property, the 1/7-acre burial plot was located. Nor did the deed contain a metes and bounds description of the burial plot's location.
In 1925, Francis Bennett Poe conveyed the 60-acre parcel to Walter Tuckerman via a deed containing the same exclusion for the burial plot. Later that same year, Tuckerman conveyed the land to Donald Woodward and Irene Woodward Parker ("the Woodwards") via a deed containing the same exclusion.
Thirteen years later, in 1938, the Woodwards began to develop the property as part of what would become the Brookdale subdivision. As part of the subdivision process, the Woodwards created Block 4, which contained five lots and a 1/6-acre "Reservation." The plat stated that the Reservation was "[n]ot included as part of the subdivision." The Reservation is a few hundred feet east of River Road.
The Woodwards recorded the subdivision as Plat No. 949. A portion of Plat No. 949, with the Reservation highlighted, is shown below (Figure 1).
(From left to right: Lot 1, Lot 2, Reservation, Lot 3, Lot 4, and Lot 5.)
Later in 1938, the Woodwards sold Lots 1 and 2 to Cooper Lightbrown, who sold the same lots to Dean and Nelle Locke. In 1959, the Lockes sold Lots 1 and 2 to James and Mary Corrigan.
In 1972, the Reservation was divided in half by the devisees of the Woodwards' estates. The devisees conveyed the left half to the Corrigans - the owners of the adjacent Lot 2 - via a quitclaim deed. The devisees conveyed the right half to the owners of Lot 3 via a quitclaim deed.
In 1989, the Corrigans sold Lots 1 and 2 and their half of the Reservation to Roy D. R. and Paulette Betteley.
In 1992, the Betteleys began the process of subdividing their property. The Betteleys planned to turn Lots 1 and 2 and their half of the Reservation into two new lots, Lots 6 and 7.
In the Betteleys' plan, Proposed Lot 6 would combine part of Lot 1, the majority of Lot 2, and the Betteleys' half of the Reservation. Proposed Lot 7 would consist of the rest of Lots 1 and 2. The new layout is shown below (Figure 2).
(Proposed Lot 6, Proposed Lot 7)
In 1993, the Montgomery County Planning Board conducted a public review hearing regarding the Betteleys' proposed plans. At the hearing, no one challenged the Betteleys' title to the half of the Reservation or claimed that the property contained a burial site. Following the hearing, the Planning Board approved the Betteleys' preliminary plans.
In 1996, the Planning Board held another public hearing regarding the site plan for Lot 7 of the proposed subdivision, which did not include any part of the Reservation. In written and oral testimony in that proceeding, representatives of the Brookdale Citizens Association raised concerns about the possible location of a burial plot on the site. In a 1997 decision, the Planning Board reported that its staff was unable to find any evidence of a burial ground.[2] The Planning Board approved the site plan, and the Betteleys surveyed the new lots and recorded Plat No. 20479.[3]
The Betteleys continued to live on their property until their deaths in the first decade of this century. After their deaths, their son, Philip Betteley, lived on the property until 2016, when he sold Lot 6 (in green, figure 2) to appellee Paramount Construction, Inc. ("Paramount").
Shortly after acquiring the property, Paramount learned that members of the Brookdale Citizens Association believed that the Reservation, now part of Lot 6, contained a burial site. Paramount hired Dr. Phillip Hill of Archaeological Testing and Consulting, Inc., to study the property and determine whether it was a burial site. Dr. Hill examined the disputed property and concluded that there was no evidence of a burial ground on the property. He wrote and submitted a report regarding his findings.
On May 4, 2018, Paramount filed a complaint to quiet title to its property under Md. Code , § 14-108 of the Real Property Article. Paramount sought a determination that it held record title to the property and that there was no burial plot on its property.
On May 21, 2018, appellants Susan Werner Scofield and Nancy Shoemaker Werner (the "Werners") moved to intervene. The Werners claimed that they are the descendants of Isaac Shoemaker and that the Reservation, part of which is now encompassed in Lot 6, contains the Shoemaker family burial ground.
On May 10, 2019, Paramount moved for partial summary judgment on the issue of title. Paramount contended that it had acquired record title to the property, including half of the Reservation, in 2016. Paramount argued in the alternative that its immediate predecessors-in-title, the Betteleys, had acquired title to half of the Reservation by adverse possession.
Opposing the motion, the Werners argued that the 1/6-acre Reservation in the Woodwards' 1938 plat is the 1/7-acre plot that was excluded from the 1924 deed to Poe (and the subsequent deeds from Poe to Tuckerman and from Tuckerman to the Woodwards). The Werners also argued that Paramount's predecessors had not openly and notoriously occupied the half of the Reservation and, hence, that they could not have acquired the property by adverse possession.
The Werners did not submit any affidavits with their opposition to the summary judgment motion. The only attachment to their opposition was the 1994 Planning Board opinion granting preliminary approval of the Betteleys' subdivision.
The circuit court granted Paramount's motion for partial summary judgment. Relying on McDonough v. Roland Park Co., 189 Md. 659 (1948), another case concerning an ancient burial plot of indeterminate location, the court reasoned that the language in the various deeds ("a small burial plot located on the Perry Boundary line near the River Road; consisting [of] 1/7 of an acre") would not permit someone to locate the burial ground with reasonable certainty, as required by Maryland law; therefore, the court concluded, the Werners had not established that the Shoemaker burial plot was located on Paramount's property. In the alternative, on the tacit assumption that the Reservation included the burial ground, the court concluded that the Betteleys had acquired title to their half of the Reservation by adverse possession, because they had continuously used and occupied the property, including the disputed part of the Reservation, for more than 20 years.
The court added that when the Betteleys sought to subdivide the property in a series of public proceedings in the 1990s, the Werners did not object. The court interpreted the absence of an objection to mean that the Werners have only recently claimed an ownership interest in the disputed property.
Finally, the court cited the 1997 decision in which the Planning Board reported that its staff was unable to find any evidence of a burial ground on Lot 7. The court regarded that statement as additional evidence of the Werners' inability to show that the burial plot mentioned in the deeds is located on what is now Paramount's property.
Chapter 33A-17 of the Montgomery County Code restricts the development of property over the site of an established burial ground. The Werners contended that four members of the Shoemaker family are buried in the burial plot, and therefore, that Paramount should be precluded from developing the land in any manner that would disturb the burial site. Thus, even though the court had determined, as a matter of law, that Paramount had title to the half of the Reservation on Lot 6, the court still had to determine whether a burial ground was located on Paramount's property.
On behalf of Paramount, Dr. Hill testified as an expert in the field of archaeology. Dr. Hill had conducted an extensive investigation of Paramount's property. Upon visiting the alleged burial site, he did not observe any above-ground evidence of a cemetery, such as headstones or depressions in the ground.
Dr Hill noted the existence of some periwinkle low to the...
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